United States District Court, M.D. Louisiana
BRADLEY W. SMITH
SHELTER MUTUAL INSURANCE CO.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Reurged Motion to Compel
Discovery and Sanctions (R. Doc. 54) filed on June 1, 2017.
The Motion is opposed. (R. Doc. 58). Plaintiff has filed a
Reply. (R. Doc. 61).
Factual and Procedural History
an insurance action arising out of an automobile-pedestrian
accident on August 13, 2001 involving Bradley W. Smith
(“Smith” or “Plaintiff”) and Paul
Babin (“Babin”). After the accident, Smith filed
a state court lawsuit against Babin and his insurance
company, Shelter Mutual Insurance Company
(“Shelter” or “Defendant”). After
conducting a bifurcated trial, the trial judge dismissed with
prejudice Babin's cross-claims against Shelter for
alleged bad faith in refusing to provide Babin with a legal
defense, misrepresenting the coverage under the Shelter
policy, and failure to indemnify Babin. Thereafter, Babin
sought review of the trial court's finding that Shelter
did not have a duty to defend Babin. The Louisiana First
Circuit Court of Appeal affirmed. Babin also sought review of
the trial court's dismissal of his claims of
misrepresentation and for failure to indemnify. The Louisiana
First Circuit held the issue was not properly before the
court on appeal because Shelter had admitted coverage and
paid its policy limits after the jury trial portion of the
3, 2015, Smith filed the instant lawsuit, under an assignment
of rights from Babin, seeking to collect from Shelter the
excess amount of the state trial court judgment beyond the
policy liability amount of $10, 000 per person, and for bad
faith damages pursuant to La. R.S. 22:1892 and La. R.S.
22:1973. (R. Doc. 1).
24, 2016, Smith served his First Set of Interrogatories and
requests for Production of Documents and Things on Shelter.
(R. Doc. 54-3).
1, 2016, Shelter filed a Motion for Summary Judgment, arguing
that Smith's claims were barred by res judicata. (R. Doc.
August 19, 2016, the district judge granted in part and
denied in part Shelter's Motion for Summary Judgment. (R.
Doc. 27). In short, the district judge held that Smith's
claims for bad faith damages were barred by res judicata, but
allowed Smith to proceed on his excess judgment liability
claims. Both parties appealed this ruling to the Fifth
Circuit Court of Appeals. (R. Doc. 36; R. Doc. 39).
August 25, 2016, Shelter filed a second Motion for Summary
Judgment, arguing that Smith's excess judgment liability
claims should also be dismissed. (R. Doc. 28). That same day,
Shelter provided its responses to Smith's outstanding
discovery requests. (R. Doc. 54-5).
September 14, 2016, Smith opposed Shelter's Motion for
Summary Judgment on the issue of excess judgment liability
(R. Doc. 32) and also sought an order requiring discovery
pursuant to Rule 56(d) of the Federal Rules of Civil
Procedure (R. Doc. 33). The district judge granted the
request for Rule 56(d) discovery, and dismissed Shelter's
Motion for Summary Judgment on the issue of excess judgment
liability (R. Doc. 32) without prejudice to refiling
following the conclusion of discovery. (R. Doc. 37).
September 21, 2016, defense counsel sent a letter to
Plaintiff's counsel stating that they were requesting
additional materials from their client and would provide the
responses as soon as received, hopefully by September 30,
2016. (R. Doc. 42-6).
October 7, 2016, Shelter filed his initial Motion to Compel
Discovery and Sanctions. (R. Doc. 42). The undersigned denied
that motion without prejudice to refile within 30 days after
the issuance of a ruling by the Fifth Circuit on the pending
appeals. (R. Doc. 49).
2, 2017, the Fifth Circuit dismissed the parties' appeal
for lack of jurisdiction. (R. Doc. 52). That same day,
Shelter moved for partial reconsideration of the August 19,
2016 Ruling to the extent it did not dismiss Smith's
claims for excess judgment liability. (R. Doc. 50).
5, 2017, the parties held a conference regarding Smith's
discovery requests and Defendant's responses. (R. Doc.
54-1 at 2).
18, 2017, Shelter provided its “Updated
Responses” to Smith's Interrogatories and Requests
for Production. (R. Doc. 54-8).
1, 2017, Smith filed the instant Reurged Motion to Compel
Discovery and Sanctions. (R. Doc. 54). Smith seeks an order
compelling supplemental responses to Interrogatory Nos. 1, 2,
3, 5, 7, 8, 11, 12, 13, and Request for Production Nos. 1, 5,
6, 7, 8, 9 and 10. (R. Doc. 54-2 at 4-12).
8, 2017, the district judge denied Defendant's Motion for
Partial Reconsideration of his August 19, 2016 Ruling. (R.
Doc. 55). In so doing, the district judge upheld his
dismissal of “Plaintiff's bad faith claims of
failing to provide a legal defense to Paul Babin (failure to
defend), misrepresenting coverage under the Shelter policy,
and for failure to indemnify Babin arising under La. R.S.
22:1892 and La. R.S. 22:1973” on the basis of res
judicata, and clarified that Smith's “only
remaining claim is one for excess judgment liability under
La. R.S. 22:1973.” (R. Doc. 55 at 5).
29, 2017, the undersigned held a conference with the parties
and set new deadlines in this action, including a new trial
date. (R. Doc. 62).
Arguments of the Parties
support of his motion, Smith argues that despite
Shelter's objections, Interrogatory Nos. 1, 2, 3, 5, 7,
8, 11, 12, 13, and Request for Production Nos. 1, 5, 6, 7, 8,
9 and 10 seek relevant information within the scope of
discovery in light of the remaining excess liability claim.
(R. Doc. 54-2 at 4-12). Smith further argues that because
Shelter has not provided a privilege log pursuant to Rule
26(b)(5)(A) of the Federal Rules of Civil Procedure, it has
waived any objections to the discovery requests on the basis
of attorney-client privilege and/or work product immunity.
(R. Doc. 54-2 at 13-14). Smith further argues that
Shelter's “refusal to participate in good
faith” and its “evasive answers and inapplicable
objections” to the foregoing discovery requests
constitutes sanctionable conduct pursuant to Rule 37,
meriting a finding that Shelter has waived attorney-client
privilege and/or work product immunity where asserted, or,
alternatively, an award of costs and attorney's fees. (R.
Doc. 54-2 at 20). Finally, Smith asserts that Shelter has
waived any objections not raised in its original responses in
light of the requirements of Rule 26(g). (R. Doc. 54-2 at
opposition, Shelter asserts that it has properly asserted the
attorney-client privilege and/or work product immunity where
asserted, and that its “general objections” to
the discovery requests on those bases constitutes a
“privilege log” as required by Rule 26(b)(5)(A).
(R. Doc. 58 at 1-5). Shelter further argues that discovery
regarding the dismissed bad faith claims is irrelevant and
that certain responses to the discovery requests are
sufficient. (R. Doc. 58 at 6-7). Finally, Shelter argues that
sanctions are not merited given the importance of
attorney-client privilege and work product immunity, and the
procedural history of this action. (R. Doc. 58 at 8-9).
reply, Smith raises additional arguments regarding the
insufficiency of Shelter's objections based on
attorney-client privilege and work product immunity,
including the sufficiency of its “privilege log.”
(R. Doc. 61).
Law and Analysis
otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
non-privileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope
of discovery need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1). The court must
limit the frequency or extent of discovery if it determines
that: “(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to
protection as trial-preparation material, the party must: (i)
expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or
disclosed--and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule
26(c)'s “good cause” requirement indicates
that the party seeking a protective order has the burden
“to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory
statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
33 and 34 provide a party with 30 days after service of the
discovery to respond or object. See Fed. R. Civ. P.
33(b)(2) and 34(b)(2)(A). If a party fails to respond fully
to discovery requests made pursuant as to Rules 33 and 34 in
the time allowed by the Federal Rules of Civil Procedure, the
party seeking discovery may move to compel disclosure and for
appropriate sanctions under Rule 37. An “evasive or
incomplete disclosure, answer, or response must be treated as
a failure to disclose, answer or respond.” Fed.R.Civ.P.
Attorney-Client Privilege and/or Work Product
raised the objection of attorney-client privilege to
Interrogatory Nos. 7, 8, 11, 13, and Request for Production
Nos. 1, 3, 5, 8. Shelter also raised the objection of work
product immunity to Interrogatory No. 13.
addition to the requirements set forth in Rule 26(b)(5)(A)
and mentioned above, this Court's Local Rule 26(c)
provides the following: “A party withholding
information claimed privileged or otherwise protected must
submit a privilege log that contains at least the following
information: name of the document, electronically stored
information, or tangible things; description of the document,
electronically stored information, or tangible thing, which
description must include each requisite element of the
privilege or protection asserted; date; author(s);
recipient(s); and nature of the privilege.” LR 26(c);
see also Cashman Equip. Corp. v. Rozel Operating
Co., No. 08-363, 2009 WL 2487984, at *2 (M.D. La. Aug.
11, 2009) (“[A] privilege log . . . should not only
identify the date, the author, and all recipients of each
document listed therein, but should also describe the
document's subject matter, the purpose for its
production, and a specific explanation of why the document is
privileged or immune from discovery.”) (quoting
Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3
(M.D. La. Mar. 10, 2008)).
objections to Smith's discovery requests on the basis of
attorney-client privilege and work product immunity are
insufficient. Shelter has not described the withheld
information in a manner consistent with Rule 26(b)(5)(A) and
Local Rule 26(c). Accordingly, the Court will determine
whether Shelter has waived the attorney-client privilege
and/or work product immunity where asserted in light of its
failure to comply with Rule 26(b)(5)(A) and Local Rule 26(c).
within the Court's discretion to find a waiver of an
asserted privilege for failing to timely produce a privilege
log. Janko v. Fresh Mkt., Inc., No. 13-648, 2015 WL
4656694, at *3 (M.D. La. Aug. 5, 2015) (citing Blackard
v. Hercules, Inc., No. 12-175, 2014 WL 2515197, at *4
(S.D.Miss. June 4, 2014)). Failure to produce a privilege log
pursuant to Rule 26 “is, on its own, sufficient to
warrant a finding that any privilege, even if it had been
established . . ., has been waived.” Janko,
2015 WL 4656694, at *3 (citing Agee v. Wayne Farms,
L.L.C., No. 06-268, 2007 WL 2903208, at *3 (S.D.Miss.
Oct. 1, 2007); see also Onebeacon Ins. Co. v. Forman
Int'l Ltd., No. 04-2271, 2006 WL 3771010, at *7
(S.D.N.Y. Dec. 15, 2006) (“The unjustified failure to
list privileged documents on the required log of withheld
documents in a timely and proper manner operates as a waiver
of any applicable privilege.”).
the arguments of the parties, the importance of the
attorney-client privilege and work product immunity, and the
record as a whole, the Court concludes that Shelter has not
waived the attorney-client privilege and work product
immunity. Foremost, for each of the written discovery
requests to which Shelter raised an objection based on
attorney-client privilege or work product immunity, it also
raised an objection as to relevance. Considering the
procedural history of this action, the Court will not
penalize Shelter for not fully explaining the basis of its
privilege objections (through a privilege log or otherwise)
until the Court issued a finding that the information sought
Smith has not indicated that the parties held a Rule 37
conference that specifically discussed Shelter's lack of
compliance with Rule 26(b)(5)(A) and Local Rule 26(c).
(See R. Doc. 54-1). Under these circumstances, the
Court concludes that Shelter should be provided an
opportunity to correct its deficiencies with regard to Rule
26(b)(5)(A) and Local Rule 26(c) rather than find a blanket
waiver of privilege. See U.S. Sec. & Exch. Comm'n
v. Commonwealth Advisors, Inc., No. 12-700, 2015 WL
10990241, at *2 (M.D. La. Dec. 16, 2015) (noting that
district judge found “across-the-board waiver” of
the attorney-client privilege by the magistrate judge without
providing the defendants “an opportunity to correct the
deficiencies” to be “unduly harsh”);
see also Cashman Equip. Corp., 2009 WL 2487984, at
*2 n.4 (“Waiver of privilege objections is not required
as a result of the production of a deficient privilege
log.”) (citing cases).
the Court will require Shelter to produce explanations of its
assertions of attorney-client privilege and work product
immunity in accordance with Rule 26(b)(5)(A) and Local Rule
26(c) on or before July 24, 2017. Shelter
shall produce a privilege log and shall identify documents
required to be produced consistent with this Order, but
withheld pursuant to the attorney-client privilege and/or the
work product doctrine. If Shelter fails to identify on its
privilege log documents and/or communications otherwise found
to be within the scope of discovery as detailed in this
Order, it will be subject to sanctions, including, but not
limited to, a finding that it has waived the attorney-client
privilege and/or work product doctrine with regard to the
documents and/or communications not identified on the
Shelter's “Full Faith and Credit”
raised the following objection to Interrogatory Nos. 3, 5, 7,
8, 11, 12, 13, and Request for Production Nos. 1, 5, 6, 7, 8,
Objection. The requested information will is (sic) not
relevant to the case at hand and is not important to the
discovery in resolving the issues pursuant to Federal Rule of
Civil Procedure 26(b)(1). The federal courts are bound to
give to the judgments of the state courts the same faith and
credit that the courts of one State are bound to give to the
judgments of the courts of her sister States. Kremer v. Chem.
Const. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1898, 72
L.Ed.2d 262 (1982). There has been a state court judicial
determination that Shelter “was not arbitrary,
capricious, or in any way in bad faith making its decision
that it did not have coverage, nor did it have a duty to
defend.” Any investigation into the requested material
is implicitly and impermissibly seeking ruling in the federal
court otherwise, which is impermissible under Full Faith and
Credit. 28 U.S.C.A. § 1738.
appears that the foregoing “full faith and
credit” objection is premised on the argument that the
dismissal of Smith's bad faith claims on the basis of res